Transparency Watch: A Closed Door

From the EPA to NASA, the FDA to OSHA, President Obama has failed to make science accessible

In July 2009, just months after President Obama took office promising to revolutionize government transparency, leaders of the Society of Environmental Journalists participated in an hour-long conference call with public-affairs staffers working for Lisa Jackson, the new head of the Environmental Protection Agency. Jackson’s office wanted to hear what the reporters’ gripes were when it came to access, and Christy George, then the society’s president, and her colleagues obliged, outlining their most persistent problems: the requirement to seek permission for interviews with agency scientists and experts, and difficulty arranging those interviews; the requirement to have press officers, or “minders,” on the phone during interviews; and the glacial pace of processing Freedom of Information Act requests. Jackson’s assistants asked for the benefit of the doubt. “We’re not the Bush administration,” George recalled them saying. “Those days are left behind.”

For a while it seemed that might be true. The agency finally released a ruling, suppressed by the administration of George W. Bush, which states that greenhouse gas emissions endanger public welfare by contributing to climate change, and therefore can be regulated under the Clean Air Act. And it took smaller but appreciated measures, like opening more lines on press calls to accommodate reporters from smaller outlets and conducting those calls later in the day to accommodate reporters on the West Coast.

Unfortunately, the honeymoon was short-lived. One of the first signs of distress came during a January 2010 press call to discuss the EPA’s new budget. The agency surprised reporters by declaring that everyone on the line except Jackson was speaking on background. When members of the Society of Environmental Journalists (SEJ) later complained, two press officers conceded that the on-background rule was foolish, as George reported in an issue of group’s quarterly newsletter. Yet the agency pulled the same stunt three months later. Then things got even worse.

Responding to President Obama’s Open Government Directive, which ordered executive departments and agencies to “take specific actions to implement the principles of transparency, participation, and collaboration,” the EPA launched two websites to solicit public comments about how to fulfill that obligation. In March 2010, SEJ weighed in with a list of nine recommendations. Days later, during the group’s next conference call with the agency, Adora Andy, the EPA press secretary at the time, “scolded us for daring to comment publicly on their transparency policies,” says Ken Ward Jr., chairman of the group’s Freedom of Information Task Force, who participated in the call. Moreover, Andy threatened to break off the discussions between the EPA and the society (she never did, and the talks are ongoing). “I was shocked,” says Ward, a reporter at The Charleston Gazette in West Virginia. “Here we were talking about concerns that journalists have about the lack of transparency. Then we dutifully submit public comments about the way we thought they should interact with the press, and EPA hammers us for it. To me, it showed that EPA just doesn’t get transparency.”

Ward isn’t the only one feeling let down. After Obama issued a number of directives designed to improve general transparency and access on his first day in office, he homed in on science, the environment, and public health as areas needing particular improvement. The focus was a no-brainer. The Bush administration had earned a reputation for quashing the free flow of scientific information. In what became the most infamous example of its meddling, top NASA climate scientist James Hansen told The New York Times in 2006 that the administration had tried to stop him from speaking out about the threat of global warming by ordering the space agency’s public affairs staff to review his upcoming lectures, papers, and online postings. Today, a slew of reporters complain that such gag orders are still a problem and that transparency and access to information is often just as bad, if not worse in some cases, than it was under the Bush administration.

A survey of science, health, and environmental journalists, conducted by CJR and ProPublica, suggests that while his record so far is more mixed than the anecdotal evidence from journalists indicates, President Obama has clearly not lived up to his promise on transparency and access. As has been the case on many fronts with Obama, the expectations among journalists that things were going to improve were so high, a failure to live up those expectations was almost inevitable.

We surveyed a random sample of members of SEJ, the Association of Health Care Journalists, the National Association of Science Writers, and Investigative Reporters and Editors on several issues, including the processing of Freedom of Information Act requests, access to experts, and overall transparency. Responses were anonymous and nearly four hundred journalists responded out of the roughly 2,100 selected to participate. (Survey results reflect the opinions of those who responded, and may not reflect the opinions of the entire sample.) Those who responded were seasoned, with nineteen years in journalism on average, including an average of fourteen years covering science, environment, or health beats. Most respondents were either full-time staffers or freelancers for print or online publications.

To some extent, the survey contradicts the impressions of journalists who complain that the situation is worse under Obama than it was under Bush. Neither administration was rated “strong” or “very strong” in any category by a majority of respondents. But overall, Obama received higher marks in nearly every category. Thirty percent gave Obama a “poor” or “very poor” grade on overall transparency and access to information, compared to 44 percent for the Bush administration. Most—42 percent—gave Obama a “fair” grade overall.

Likewise, Obama got better marks than Bush in four specific categories of transparency and access: interview permissions, interview minders, online databases, and processing foia requests. Unsurprisingly, given his directive to make more government information available online, Obama showed the greatest amount of improvement over Bush in the databases category, with 31 percent giving the administration a “strong” or “very strong” grade. Progress in the other categories was small to insignificant, however, and in each one most respondents gave both Obama and Bush of “poor” or “very poor.” Respondents with more experience tended to have harsher opinions, giving the Obama administration generally lower marks.

Marginal progress, however, does not an open government make, and the fact that a third of survey participants said Obama is basically doing a poor job overall does not bode well for the free flow of information. His administration is clearly trying, just not quite as hard as he suggested it would.

Felice Freyer, for instance, who chairs the Association of Health Care Journalists’ Right to Know Committee, says the committee’s effort to fight secrecy has followed a course nearly identical to the one described by leaders of SEJ. In April 2010, the association began a series of meetings and phone calls with the Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA) about improving access to federal experts. But progress has been difficult to elusive.

Responding to Obama’s calls for openness, the FDA created a Transparency Task Force a few months after his inauguration. The health-care association joined ten other journalism organizations and more than two dozen individual journalists to send a letter to the task force demanding that it end the requirements that journalists obtain permission to conduct an interview, and that public information officers listen to interviews. Six months later, representatives of the association met with Jenny Backus, who became the top press secretary at HHS, to voice some of the same concerns. Backus defended the department’s policies requiring interview permissions and minders, but expressed a desire to work with the press. “She gave us her line about, ‘We really want to help reporters, and we believe in transparency,’ ” Freyer says. “She even told me that HHS believed the regional media were important, and that it wasn’t just talking to The Washington Post and The New York Times. But she also promised us a list of all the media contacts in HHS, and then never delivered. She talked about having us come to meet with the department’s pubic information officer at this convention in September. She said she’d look into it, and then never did. So she never really followed up on most of what she promised.”

Such neglect has real-world consequences. Around the same time, Freyer was working on a story for The Providence Journal, where she’s been the medical reporter since 1989. Ten percent of the obstetrician-gynecologists in Rhode Island had admitted to inserting a type of intrauterine device (iud), a form of birth control, into hundreds of women, which had not been approved by the FDA for use in the United States and which they’d obtained illegally at discount prices from foreign sources. The FDA launched an investigation, about which Freyer had questions. Unsure which press officer to approach, she filled out the “Timely Response E-mail Form” on the agency’s website. Several hours passed with no response, so she called and spoke with a press officer. He suggested that Freyer e-mail her questions to him, which she did. Nothing. When she called again two days later, the press officer said he was waiting for a response from his superiors. He suggested that she resubmit her questions for a third time. She did, to no effect. Several more days passed and she sent yet another e-mail asking if she could expect answers, and if not, why. “At this point, all we can say is that the FDA is continuing to look into these cases,” the press officer replied.

Freyer recounted the saga in an online article for the AHCJ:

I published my story, stating that the FDA had declined to answer any questions. Four days later, the FDA posted a ‘consumer update’ on its website referring to the Rhode Island controversy and warning consumers against iuds. . . . It turned out the fda’s position was not the ‘No comment’ I received. The agency had quite a lot to say on the matter, but had declined to say it in the newspaper serving the hundreds of women throughout Rhode Island who were distressed and frightened by the IUD incident. They deserved better from the agency that was supposed to be protecting them.

Freyer e-mailed the press officer with whom she’d corresponded as well as the fda’s chief press officer to ask what had happened. When neither replied, she e-mailed Backus at HHS, who finally got the FDA to apologize for its unresponsiveness and promise to do better. Backus was replaced shortly thereafter, however. As Freyer put it, the association had to “start all over again,” and transparency problems have continued under Backus’s successor, Richard Sorian.

At the beginning of 2011, for instance, the FDA stunned reporters while announcing changes to its medical-device approval process. The announcement was under embargo and the agency’s press officers barred journalists seeking outside comment from sharing information about the changes with experts until the embargo lifted. The association wrote a letter of protest, pointing out that the prohibition “rewrote a long-standing compact between reporters and various public and scientific organizations,” which typically allows reporters to share embargoed material with sources while working on their stories. Members of the Right to Know Committee pressed the matter, and in June the FDA reversed course. Around the same time, HHS also finally released the list of senior media officials in each of its divisions, which the association had been requesting for about a year.

Despite these victories, and the launch of what will be ongoing quarterly conversations with hhs’s public affairs staff, Freyer is unsure how much progress has been made. “The big issue is that reporters who’ve been at this for a while remember being able to call up and talk to the people who actually knew what was going on, not just spokespeople, and that’s become increasingly difficult,” she says. “So I don’t see milestones here. It’s been an ongoing problem that we’re chipping away at.”

The Obama administration’s transparency problem not only affects access to federal scientists and highly politicized environmental and medical science. It’s also about access to government documents and databases, and basic research. In 2006, allegations emerged that an electron microscopy research group at Oak Ridge National Laboratory in Tennessee, which receives millions of dollars a year from the Department of Energy, had fabricated data. Suspecting lax oversight, freelance reporter Eugenie Samuel Reich, now a contributing correspondent for the journal Nature, filed a FOIA request for files related to the ensuing investigation, which had been initiated and organized by the lab itself. The Department of Energy rejected the request, so Reich bided her time until the 2008 presidential election ushered in a new administration. When Obama made his pledge about openness and then appointed Steven Chu and a number of other “scientists with excellent reputations” to the department, she believed there would be a “change of heart.” There wasn’t. Reich filed a lawsuit under the FOIA in 2009, which a federal district judge in Boston finally dismissed in April of this year, to her amazement.

“This record had nothing to do with national security—not even the government claims it does—so it is a very good test case of how other, non-security-related records are being handled,” Reich says. “The government’s court filings have been relentless and extraordinary, with numerous deliberate references to the need for privacy, confidentiality, and respecting the proprietary rights of government contractors.”

Some of President Obama’s most vociferous critics on the transparency front will grudgingly concede, as our survey seemed to suggest, that his administration has made marginal progress. “A lot of colleagues would stone me for saying this, but it actually has gotten better,” says Joe Davis, the director of the SEJ’s Freedom of Information Project. “And I think one of the most illustrative cases in point is the one about coal ash.” In December 2008, a coal-ash containment pond at a power plant in Tennessee burst, spreading toxic waste across hundreds of acres and dozens of homes. The spill was the last skirmish in the society’s long battle over transparency and access with the Bush EPA, which took eleven days to release the results of its first tests of the sludge. An agency official under the new Obama administration promised to do better, but in June 2009, SEJ accused the EPA of “hiding” a list of high-hazard, coal-ash impoundments across the country, some of which posed potential threats to residential communities. At first, the agency echoed the post-September 11 Bush line about guarding the information for national security reasons. “Terrorists were less of a threat than a good rainstorm, which might sweep away any of those impoundments,” Davis says. “But eventually they released the list, so we have that information and the communities [near the impoundments] know about them, and maybe safety measures will be put in place. That information would not have come out under the Bush administration. That’s the difference. However, I will also say in my next breath that the Obama administration hasn’t lived up to its promises. They raised our expectations so high and the distance we’ve come is disappointingly short.”

One thing that helped raise those expectations was the memo that President Obama sent to John Holdren, then awaiting confirmation as director of the White House’s Office of Science and Technology Policy (OSTP), in March 2009. It directed him to draft a plan to improve scientific integrity throughout the executive branch. A key provision was the development of a public communications plan. Obama gave Holdren 120 days to complete the assignment. Now, more than two years later, the plan is still not in place. In August 2010, more than a year after they were due, the Public Employees for Environmental Responsibility—a nonprofit alliance of local, state, and federal natural resource professionals—submitted a FOIA request to Holdren’s office for a copy of the recommendations and related policy documents. After two months passed with nothing from OSTP, the group sued.

Finally, last December, Holdren released a memo providing guidance to departments and agencies about how to improve scientific integrity and openness. The document immediately drew criticism from transparency watchdogs for “legitimizing,” as the SEJ put it, interview permissions and minders. A few days later, OSTP released the related policy documents—meeting notes, progress reports, congressional testimony—that the public employees group had requested. They were heavily redacted, but in the snippets that weren’t SEJ’s Joe Davis saw the fingerprints of a suspect he believes has played a key role in thwarting progress toward openness and access over multiple administrations: the Office of Management and Budget (OMB), which has the power to review and approve programs, policies, and procedures throughout the executive branch.

The documents that OSTP released revealed that, in fact, Holdren and company had sent their transparency recommendations to OMB by June 2009, on schedule to meet Obama’s original deadline, and that the effort foundered there. More than a year later, the two offices were still trying to settle on a final draft of the recommendations, which weren’t released until December 2010, more than seventeen months behind schedule. Last May, Holdren once again extended the deadline for departments and agencies to submit draft policies, which were due around the time this article went to press.

“omb, an agency with very little in-house scientific expertise, has been monkeying with science for a very long time, and asserting authority over the science process in the federal government,” Davis says. “It provides an ideal mechanism for interference.”

There are other mechanisms. Even in departments and agencies with special expertise in the sciences, there is often an entrenched corps of civil servants that resists transparency and access—often as a result of turf battles and a sense that bosses, and their edicts, come and go—and survives from one administration in the other. New appointments often do nothing to help matters. Numerous reporters pointed out that the top press officers at departments and agencies often are recruited from a president’s campaign staff, with disastrous results. “They want to run government agencies like they’re political campaigns and they don’t seem to understand that there ought to be a difference,” says SEJ’s Ken Ward Jr. “All the information that EPA has about its inspections, its enforcement, its science—that belongs to the public.”

Changing the culture of secrecy is a lot harder than redecorating the Oval Office. Some watchdogs believe that transparency and access have steadily diminished since the 1970s, as successive administrations clamped down more tightly, and with a greater sophistication, on the free flow of information to the public. Indeed, many veteran reporters I spoke to think that the very establishment of press policies and guidelines, not unlike those that Obama called for, are what led to problems in the first place. These edicts were supposed to open and streamline communication between government and the press, but by codifying practices such as the dreaded interview permissions and minders, they actually gave government a mechanism to block journalists when it was politically pragmatic to do so. In early August, for example, the EPA finally released its scientific integrity proposal, as per John Holdren’s instruction. But it did exactly what transparency watchdogs feared: it encouraged scientists to interact with the press, but required that they inform their superiors about those interactions and instructed public affairs staff to “attend interviews,” thereby formalizing the permissions and minders policy that journalists complain about.

Contrary to the notion that Obama would, as he promised, usher in a sea change in terms of transparency, there is a case to be made that, when it comes to controlling information via press policies, Obama is the savviest practitioner ever. Consider his adroit use of digital media as a defining example. His Open Government Directive made an unprecedented amount of federal scientific data available online. His administration touts that accomplishment as proof of transparency, but critics say that is disingenuous. In practice, the databases demonstrate how the Obama administration treats communication as a one-way street. Data, after all, rarely speak for themselves and reporters want, more than anything, to talk to the officials who collected and analyzed them. As Felice Freyer found out when she attempted to speak with the FDA about its investigation of unapproved intrauterine devices, however, the administration often prefers to publish statements online, or via social media, than make them directly available to journalists. It’s a duplicitous game that allows Obama to claim that his administration is living up to its promises. Yet almost any science reporter in the country will tell you that nothing could be further from the truth, and that even if the Office of Science and Technology Policy produces a plan for scientific integrity and transparency, it could make matters worse, not better.

Reporters on the science beat may have to accept that the days of easy access are gone—and plenty of them already do. Groups like the Society of Environmental Journalists and the Association of Health Care Journalists are still pushing for an end to interview permissions and minders, as well they should. But even their most optimistic members merely cross their fingers, knowing that if they held their breath, they’d surely expire.

This article was produced in partnership with ProPublica, whose director of computer-assisted reporting, Jennifer LaFleur, analyzed the survey data.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Curtis Brainard writes on science and environment reporting. Follow him on Twitter @cbrainard.

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